Uncharted Territory: What are the Consequences of President Obama’s Unprecedented ‘Recess’ Appointments?

Witness and Testimony Documents
United States Senator from Utah
Founding Partner
Boyden Gray & Associates
Partner
Mayer Brown
Samuel Ashe Distinguished Professor in Constitutional Law
University of North Carolina School of Law
Partner
Baker Hostetler, LLP
Partner
Dinsmore & Shohl, LLP
February 01, 2012,

Chairman Darrell Issa Hearing Preview Statement

If the United States Senate can pass a bill and send it to the President for his signature, it is clearly not in recess. But a "recess" is exactly what President Obama has argued in justifying four recent appointments.
Today, the committee will assess the answer to that question and others by reviewing the process and law regarding recess appointments made by President Obama and their legal justification.
 
On January 4, 2012, the President appointed Richard Cordray as Director of the Consumer Financial Protection Bureau and Richard Griffin, Jr., Sharon Block, and Terence F. Flynn as members of the National Labor Relations Board.
 
These "recess" appointments place Congress and the Executive Branch in uncharted territory because at the time of the appointment, the Senate was holding a series of "pro forma" sessions." This action has already triggered lawsuits challenging the validity of the appointments and is sure to bring further suits challenging the validity of rules and regulations passed by these federal agencies.
 
One NLRB member has said there will be a 'cloud' over future NLRB actions because "anything they do is going to be subject to being undone, because [it could be successfully argued] they didn't have the authority to act." Mr. Cordray told me in previous testimony he has no Plan B if the courts do invalidate his appointment.
This is not a recipe for good government and effective rulemaking—it's a recipe for Constitutional crisis.
It is my hope that today's hearing will help us understand this crisis, so that we can act to address its consequences before they land on businesses, employees, job creators and all those governed by two key agencies whose very decisions are now at risk of being invalidated.